Judge Rules ATF "Jumped the Gun"

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hotbrass
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Judge Rules ATF "Jumped the Gun"

Post by hotbrass » Wed Mar 26, 2014 1:03 pm

FEATURE
Judge Rules ATF "Jumped the Gun"

The ATF's methods, management, and merit appear to all be under close scrutiny by just about everyone these days.

In Washington, the House Oversight Committee is again demanding facts related to numerous botched investigations. Those well-known "investigations" have cost lives, "lost" thousands of dollars in cash and resulted in hundreds of illegally-obtained weapons going to Mexican drug lords. Along the way, ATF agents also lost some of their issued firearms- including fully-automatic rifles.

In California, both Ares Armor and EP Armory seem willing to fight following ATF raids on both companies. Those raids apparently came after the companies refused to turn over customer records and some inventory. The "inventory" was only brought into question after the ATF's seemingly abrupt reversal of the classification of 80% complete MSR lowers of polymer. At some undetermined point, those polymer lowers became instead of "blanks"-the classification both the ATF and the firearms industry consider those same parts when made of metal.

NEWS UPDATE: Yesterday, Ares Armor announced it was enacting a new secure encryption system to protect its customer information. Citing a pair of court decisions saying that computers and software could be included in an investigation, the Fifth Amendment protects the encryption key under the right against self-incrimination.

A U.S. District Judge in Washington has now joined the growing ranks of critics.

U.S. District Judge John Bates has issued a ruling that says ATF "jumped the gun" in classifying a device as a "firearms silencer" without sufficient review. Bates is blistering in his criticism of the agency and its decision-making processes.

"In any agency review case, a reviewing court is generally obligated to uphold a reasonable agency decision that is the product of a rational agency process," U.S. District Judge John Bates writes.

"This is not a high bar," he continues, "But in this case, ATF fails to clear it."

Ouch.

The ruling comes after the ATF's classification of the Stabilizer Brake from Innovator Enterprises as a "suppressor" rather than its intended purpose as a "muzzle brake".

If you've fired a rifle with a muzzle brake, or been next to someone firing one on the range, you're painfully aware of two undesirable characteristics-increased muzzle flash and a significant, sometimes painful, increase in noise levels.

Innovator Enterprises felt they'd addressed both problems. Noise wasn't diminished, but some gases were redirected forward-away from the shooter. They were careful to stipulate the goal was not to diminish the sound, just redirect a portion of it away from the shooter.

Innovator Enterprises requested an opinion letter from the ATF classifying their device as a muzzle brake, not a silencer. With the muzzle brake classification, the device could be offered as an unregulated part. Without it, the process wouldn't be worth it.

Six weeks later, Innovator got a letter from the ATF- and a surprise: the ATF had classified the Stabilizer Brake a suppressor. In response, Inovator sued in federal court in Washington, hoping to have the ATF determination overturned.

After examining the case, Judge Bates agreed with Innovator and overturned the Classification Letter. His dissection of why he overturned the ATF is merciless.

This letter, he wrote, "contains hardly any reasoning, and makes no reference to prior agency regulations or interpretations that support its conclusion." Instead, Judge Bates called the ATF letter a brief and informal document and "a non-binding statement of the agency's position on whether the Stabilizer Brake is a silencer."

As such, he wrote, it "will not bear the force of law as applied in future classifications of different devices."

He then took particular exception with how the ATF made their decision, especially with their failure to use state-of-the-art sound measurement devices to make their determination, despite stating clearly in their letter that they had that capability. Instead, he wrote, they based their ruling "solely on the physical characteristics of the device."

Judge Bates then bites - deeply- into the ATF and its decision-making process.

For example, there was his examination of the characteristics test applied by the ATF:

"Even if this general approach of relying 'solely' on physical characteristics were sound, the agency did not perform a scientific or rigorous comparison of physical characteristics. Instead, it consulted a list of six characteristics that are allegedly common to 'known silencers,' and then, if the submitted device has some (unstated) number of those characteristics (here, three out of six was enough), it is a 'firearm silencer.'

"But where did that list of six characteristics come from? The agency never explains whether those six characteristics are present in all (or most?) silencers. The agency never explains whether there are other common characteristics that do not appear on its list. And the agency never explains how many characteristics in common are necessary to be classified as a 'firearm silencer.' What if a device has an 'encapsulator' and an 'end cap; - is it a silencer? What about a device that is attached to the muzzle of a rifle, and is full of "sound dampening material," but has none of the other five physical characteristics-is it a silencer? The agency's approach leaves Innovator (as well as other regulated parties, and reviewing courts) guessing."

(NOTE: The parentheses are the judge's, not our interpretation of his remarks.)

The ruling went on to remind the ATF that having "a tail, grey skin and four legs" didn't make an animal an "elephant" or a child's bicycle a motorcycle because it had "three characteristics of motorcycles: two rubber tires, handlebars and a leather seat."

He didn't stop there. He went on to point out that a Bud Light is not a Single-Malt Scotch because it is "frequently served in a glass container, contains alcohol and is served in a tavern" any more than a hockey puck is a "rubber bullet" because it has "rounded sides, is made of vulcanized rubber, and is capable of causing injury when launched at high speeds."

"Learning that one object has three characteristics in common with some category," he wrote, "may not be very helpful in determining whether the object in question belongs in that category."

"Put another way, ATF argues that knowing whether the device actually diminishes the report of a portable firearm is irrelevant to determining whether the device is "for diminishing the report of a portable firearm." 18 U.S.C. § 921(a)(24). It marshals an example in support of this "purpose" interpretation: a pillow might have some mild success at "diminishing the report" of a firearm, and "ecause it could be an effective silencer, then Plaintiff's interpretation would lead to the absurd conclusion that pillows were silencers . . . thus requiring a special NFA license to manufacture or possess them and requiring the payment of a tax."

And Judge Bates wasn't finished. "To make matters worse," he wrote, "other agency guidance uses a different set of characteristics- the six characteristics in the Classification letter appear not to be an exhaustive definitive list."

He then sent the matter back to the ATF for further review-and granted Innovator a summary judgement on its claim because the ATF had failed to "articulate a satisfactory explanation" and "examine the relevant data" in classifying the muzzle brake a "firearm silencer."

Using Judge Bates' comparative critique of the flawed-logic used by the agency in its decision, you could draw the conclusion that possessing three characteristics of a competent police officer (a badge, gun, and arrest powers) wouldn't qualify an individual (or group of similar individuals) to mount complicated investigations where a scrupulous attention to detail, an adherence to the rule of law, or an unswerving dedication to public safety during those investigations were essentials.

Maybe it's just me, but this ruling makes another compelling argument that ATF is an agency in need of a top-to-bottom overhaul.

--Jim Shepherd

Editor's Note: If you're a student of the law, or simply want to see how good legal research can still make interesting reading, you might want to read Judge Bates' opinion for yourself. It can be found at:
https://ecf.dcd.uscourts.gov/cgi-bin/sh ... 3cv0581-17


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Re: Judge Rules ATF "Jumped the Gun"

Post by rjrivero » Wed Mar 26, 2014 2:18 pm

love it

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Re: Judge Rules ATF "Jumped the Gun"

Post by Liver » Wed Mar 26, 2014 2:33 pm

Thanks for posting this.

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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Wed Mar 26, 2014 2:56 pm

If you enjoyed this thread, we'd love for you to join us over at RandomTalk.
viewforum.php?f=126
We discuss these subjects even quicker over there.
A mouse is not an elephant viewtopic.php?f=126&t=123753
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Re: Judge Rules ATF "Jumped the Gun"

Post by hotbrass » Wed Mar 26, 2014 3:02 pm

whiterussian1974 wrote:If you enjoyed this thread, we'd love for you to join us over at RandomTalk.
viewforum.php?f=126
We discuss these subjects even quicker over there.
A mouse is not an elephant viewtopic.php?f=126&t=123753

Did I post this in the wrong place?

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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Wed Mar 26, 2014 3:20 pm

hotbrass wrote:
whiterussian1974 wrote:If you enjoyed this thread, we'd love for you to join us over at RandomTalk.
viewforum.php?f=126
We discuss these subjects even quicker over there.
A mouse is not an elephant viewtopic.php?f=126&t=123753
Did I post this in the wrong place?
It's OK. We just discussed this in the other Forum yesterday.
A mouse is not an elephant viewtopic.php?f=126&t=123753 is where someone 1st posted this Ruling/Oppinion.
They are really quick to link news stories of interest over there. :)
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Re: Judge Rules ATF "Jumped the Gun"

Post by DMY » Thu Mar 27, 2014 7:57 pm

I too love it. Everyone tip-toes around the ATF regulations. Although what happened to the affected companies is unfortunate, I am glad they had the balls to stand up to the ATF and were successful.

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Re: Judge Rules ATF "Jumped the Gun"

Post by BigBoyToyz » Thu Mar 27, 2014 9:11 pm

lol encryption, no doubt both companies know that if they gave the Atf encrypted files, they would be decrypted within 24hrs. Guess it was a good tactic for the judge.

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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Thu Mar 27, 2014 9:38 pm

Why dont' ALL companies protect customer data w encryption?
Target has proved what happens when customer data is treated as Open Source info.
We have Laws that make virtually every human act a crime. In Europe they have Privacy Laws w teeth. Almost makes me want to relocate for retirement.
DMY wrote:I too love it. Everyone tip-toes around the ATF regulations. Although what happened to the affected companies is unfortunate, I am glad they had the balls to stand up to the ATF and were successful.
It's a pity that the ruling Party of whichever Administration commits such Misconduct doesn't have to pay Treble Damages.
Environmental Groups actually get paid grants to file lawsuits. Why don't Firearm Mfrs too? Wouldn't it be a kick if a Pro-2nd Amend Legal Coalition got US Grants to file on States and Politicians/Officials?
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Re: Judge Rules ATF "Jumped the Gun"

Post by Armorer-at-Law » Fri Mar 28, 2014 9:47 am

So the matter has been remanded to the now-scorned ATF Tech Branch to evaluate it again, presumably using their "state of the art" sound measuring equipment. Since their "Standard Operating Procedures" do not include very detailed protocol for how their sound measuring equipment will be used (only that it will be calibrated and the microphone will be placed "approximately 90 degrees from the muzzle of the firearm to optimize the sound-pressure level recordings), who wants to guess they will find a way to "demonstrate that [the device is] capable of reducing the report of a portable firearm"?

At least it may make Tech Branch actually test putative silencers in the future, rather than just count how many physical characteristics it has that are "consistent with known firearm silencers."
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Re: Judge Rules ATF "Jumped the Gun"

Post by Historian » Fri Mar 28, 2014 10:12 am

Armorer-at-Law wrote:So the matter has been remanded to the now-scorned ATF Tech Branch to evaluate it again, presumably using their "state of the art" sound measuring equipment. Since their "Standard Operating Procedures" do not include very detailed protocol for how their sound measuring equipment will be used (only that it will be calibrated and the microphone will be placed "approximately 90 degrees from the muzzle of the firearm to optimize the sound-pressure level recordings), who wants to guess they will find a way to "demonstrate that [the device is] capable of reducing the report of a portable firearm"?

At least it may make Tech Branch actually test putative silencers in the future, rather than just count how many physical characteristics it has that are "consistent with known firearm silencers."
Flashback to 1940's to 1960's: Selling condoms was illegal in many States
and the 'Pussy Posse' would raid drugstores. What a waste of time instead
of solving and preventing real crimes. Shameful waste of resources.

So it seems with suppressors. They are not fully automatic weapons nor
destructive devices. Just a way to prevent auditory damage. Are there
no mature intelligent folks at ATF who want to focus their efforts onto eliminating
real weapons crimes and husband their resources more effectively than
stretching credulity by determining how many angels can dance on a head of a pin at
the end of a suppressor?

The stellar FBI on the other hand caught the San Francisco Democrat, who was the most
virulent anti-Second Amendment advocate including confiscation of all arms, for trafficking in fully automatic weapons and
missile launchers from China to gangs. Where was the ATF? Too busy trying to convince a judge that
pillows should be listed as silencer parts since they have been used to muffle shots?

In a past life brave souls at an Agency level would call a 'Come to Jesus' meeting and
refocus with extreme emphasis a bad direction.

William of Occam's dictum paraphrased, the simplest solution is the correct one.
Take suppressors off the list, log them in at purchase as a firearm with the $200.00 'tax' , and save
literally millions for citizens, ATF staff, and streamline fighting criminals as well as the FBI.

Hope springs eternal.

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Re: Judge Rules ATF "Jumped the Gun"

Post by este » Fri Mar 28, 2014 10:58 am

Using Judge Bates' comparative critique of the flawed-logic used by the agency in its decision, you could draw the conclusion that possessing three characteristics of a competent police officer (a badge, gun, and arrest powers) wouldn't qualify an individual (or group of similar individuals) to mount complicated investigations where a scrupulous attention to detail, an adherence to the rule of law, or an unswerving dedication to public safety during those investigations were essentials.
Awesome.

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Re: Judge Rules ATF "Jumped the Gun"

Post by Apollo0311 » Fri Mar 28, 2014 11:09 am

Historian wrote: William of Occam's dictum paraphrased, the simplest solution is the correct one.
Take suppressors off the list, log them in at purchase as a firearm with the $200.00 'tax' , and save
literally millions for citizens, ATF staff, and streamline fighting criminals as well as the FBI.

Hope springs eternal.
While we're riding this heroin-like fantasy train, how about they just declare the entire NFA act (including the Hughes amendment) unconstitutional, and return true firearms freedom to law abiding citizens?

Oh hope does spring eternal......

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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Fri Mar 28, 2014 12:41 pm

Apollo0311 wrote:While we're riding this heroin-like fantasy train...
How about shifting the burden to EPA and OSHA insuring that they are hearing safe, instead of criminalizing Safety Devices?

What would happen if automobile Seat Belts and Airbags required a $200 Stamp and Serializing requirements? A 15 month wait for Abortions? Special education requirement, Criminal Background check, and CLEO signoff for sale of Bicycle Helmets?
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Re: Judge Rules ATF "Jumped the Gun"

Post by Armorer-at-Law » Fri Mar 28, 2014 1:29 pm

Take suppressors off the list, log them in at purchase as a firearm with the $200.00 'tax' , and save
literally millions for citizens, ATF staff, and streamline fighting criminals as well as the FBI.
That's not ATF's choice. It would required Congress amending the NFA statute (and the President's signature).
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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Fri Mar 28, 2014 1:46 pm

Armorer-at-Law wrote:That's not ATF's choice. It would required Congress amending the NFA statute (and the President's signature).
Not Congress, just a Signing Statement. Phone and Pen, right?

How about a Waiver if we "promise" to buy Obamacare?
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Re: Judge Rules ATF "Jumped the Gun"

Post by Nuclear » Sun Mar 30, 2014 8:11 pm

There isn't anything in the NFA law that says the current almost year long process must be followed. It says you have to file the proper form, pay the tax, and the form needs to be approved. Virtually all of this could be done over the Internet in minutes, not months. Worst case, this should be no harder than going to the DMV to get a driver's license. Hell, aside from a CLEO sign off, you could easily set it up to do it at the DMV.

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Re: Judge Rules ATF "Jumped the Gun"

Post by whiterussian1974 » Sun Mar 30, 2014 9:37 pm

Nuclear wrote:Virtually all of this could be done over the Internet in minutes, not months. Worst case, this should be no harder than going to the DMV to get a driver's license. Hell, aside from a CLEO sign off, you could easily set it up to do it at the DMV.
Since it's a Federal rather than State function, US Post Office would make sense. That's how Passports are processed for the State Dept.
Bingo! We just found a way to make the USPO relevent and help its solvency issues. Install an Indoor Pistol range and now they can conduct periodic qualification for CCW renewal. (Just dreaming. I know that it would never happen. Plus, it would reduce local trainers' income, require tens of thousands of new Regulations, a Federal Firearms Training Union and Lobby, etc.)
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The Death of One is a Tragedy, a million only a statistic.-Stalin
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